United States v. Santos-Santana
| Decision Date | 28 December 2022 |
| Docket Number | 22-10367 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXANDER RAFAEL SANTOS-SANTANA, PAULINO VASQUEZ-RIJO, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeals from the United States District Court for the Southern District of Florida D.C. Docket No 1:21-cr-20384-BB-2 Before NEWSOM, GRANT, and LAGOA, Circuit Judges.
In this consolidated appeal, Alexander Santos-Santana and Paulino Vasquez-Rijo (collectively, "Defendants") challenge their convictions and sentences of 120 months' imprisonment for conspiracy to possess cocaine while on board a vessel subject to the jurisdiction of the United States. On appeal, Defendants make several arguments.
First they argue that 46 U.S.C. § 70502(d)(1)(C) of the Maritime Drug Law Enforcement Act ("MDLEA") is facially invalid under the Felonies Clause, U.S. Const. art I, § 8, cl. 10, because the MDLEA expands jurisdiction to vessels that make a verbal claim of nationality without any corroboration by the named nation. They contend that, under customary international law, a verbal claim of nationality without corroboration constitutes proof of the vessel's nationality, and that the Felonies Clause should be read in conjunction with customary international law because the clause contains international law terms. Santos-Santana also asks us to adopt the First Circuit's decision in United States v. Davila-Reyes, 23 F.4th 153 (1st Cir. 2022), reh'g en banc granted, op. withdrawn, 38 F.4th 288 (1st Cir. 2022), which held that Congress exceeded its power by defining a "vessel without nationality" to include vessels for which the crew claimed a nationality but the nation neither confirmed nor denied. They also argue that the MDLEA is unconstitutional as applied to them because the vessel was in the Dominican Republic's Exclusive Economic Zone ("EEZ"), which customary international law excludes from the high seas.
Second, Defendants contend that the district court clearly erred in determining that they did not qualify for safety-valve relief. While the United States Coast Guard ("USCG") found a firearm on board the boat Defendants were on, Defendants argue that there was no evidence that they possessed that firearm, as the firearm was found in a plastic bag underneath an unused engine in the rear of the boat and unloaded with no ammunition present on the boat. They argue that the district court applied the incorrect standard because it confused the safety valve with the firearm enhancement, pursuant to U.S.S.G. § 2D1.1. Third, Santos-Santana argues that the district court clearly erred in determining that he did not qualify for a minor-role reduction because he testified that Vasquez-Rijo had greater responsibility on the vessel than he did.
For the reasons discussed below, we affirm.
In 2021, a federal grand jury charged Defendants each with one count of conspiracy to possess a controlled substance aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b) (Count One), and one count of possession with intent to distribute a controlled substance aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(a)(1) (Count Two).
Both Defendants pleaded guilty, without a plea agreement, to Count One, with the understanding that the government would move to dismiss Count Two at the time of sentencing.
According to the stipulated factual proffers each signed by Defendants, on July 5, 2021, "a maritime patrol aircraft (MPA) detected a go-fast vessel (GFV) approximately 80 miles southwest of Mona Island, Puerto Rico, in international waters and upon the high seas." The MPA observed two people and multiple packages on board the GFV with no flag or any other indicia of nationality. The USCG arrived on the scene and found Defendants on board the GFV. While neither identified themselves as the master of the GFV, Vasquez-Rijo made a verbal claim of Dominican nationality for the vessel. USCG contacted the Dominican Republic's government, which could neither confirm nor deny the nationality of the GFV. The USCG boarding team recovered 12 bales consisting of approximately 357 kilograms of cocaine, and a shotgun. The parties stipulated that the vessel "was a vessel without nationality" and subject to United States jurisdiction, pursuant to 46 U.S.C. § 70502(c).
At the change of plea hearing, both Defendants were sworn. In relevant part, the government summarized the factual basis as it appeared in the stipulated factual proffers, and both Defendants admitted to the facts as detailed. The district court found that the United States had jurisdiction over the vessel as a vessel without nationality, pursuant to § 70502(c). And the district court accepted each Defendant's plea of guilty.
The U.S. Probation Office generated both Defendants' individual presentence investigation reports ("PSI"), describing the offense conduct with the stipulated factual proffer. Each PSI further provided that the firearm found onboard was unloaded and no ammunition was located on the GFV. The PSIs stated that neither Defendant qualified for an aggravating or mitigating role adjustment because the evidence did not suggest that one of the conspirators was the captain or navigator of the vessel. The PSIs also stated that neither Defendant qualified for safety-valve relief under U.S.S.G. § 5C1.2 because they possessed a firearm in connection with the offense.
Pursuant to U.S.S.G. § 2D1.1, their base offense level was 36 because the offense involved at least 150 kilograms but less than 450 kilograms of cocaine. Pursuant to § 2D1.1(b)(1), they each received a two-level increase because there was a firearm aboard the vessel. Pursuant to U.S.S.G. § 3E1.1(a) and (b), they each received a total 3-level reduction for their acceptance of responsibility, resulting in a total offense level of 35. They each were assigned zero criminal history points, resulting in a criminal history category of I. Santos-Santana's PSI noted that Santos-Santana had been employed as a boat driver. The statutory maximum term of imprisonment for each was life imprisonment, and the minimum term was ten years. Based on their total offense level of 35 and criminal history category of I, each of their guideline ranges was 168 to 210 months' imprisonment.
Santos-Santana objected to the two-level increase for possession of a firearm because there was no evidence that the firearm was used to commit the crime, no ammunition on the boat, and no evidence that he possessed the firearm or intended to possess the firearm. He objected that he should have received a two-level minor-role reduction to his offense level, arguing that his role compared to Vasquez-Rijo's was minor because the evidence showed that he (1) did not obtain the boat; (2) did not have relationships with anyone in Colombia related to the conspiracy; (3) had no connection to the firearm; and (4) received instructions from Vasquez-Rijo as to his role in the conspiracy. He contended that Vasquez-Rijo's conduct included planning and organizing the conspiracy while his conduct included accompanying Vasquez-Rijo. He also objected that he should have received safety-valve relief, pursuant to U.S.S.G. § 5C1.2, despite the unloaded firearm found on the boat. He argued that constructive possession was insufficient to preclude safety-valve relief and that there was no evidence that he actually possessed the firearm in connection with the offense.
Vasquez-Rijo objected to the two-level increase pursuant to § 2D1.1(b)(1) because the firearm was unloaded, no ammunition was recovered aboard the vessel, and he did not claim ownership of the gun. He also argued that he should have received safetyvalve relief, pursuant to § 5C1.2, because he did not actually possess the firearm, as it was found in a black plastic bag underneath an engine on the vessel, and because there was no evidence that he induced anyone to possess the firearm.
The government responded that the two-level increase was proper because the firearm was present on the vessel and neither Defendant had shown that the connection between the firearm and the offense was clearly improbable. The government contended that Defendants' constructive possession of the firearm was sufficient to preclude safety-valve relief. The government argued that the firearm was connected to the offense because the vessel was small and contained both the firearm and the cocaine. The government also argued that Santos-Santana did not qualify for a minor-role reduction because the record did not support his claims about his role in the conspiracy; the conduct he was being held accountable for was attempting to smuggle 357 kilograms of cocaine through a vessel, for which his and Vasquez-Rijo's roles were the same.
At Vasquez-Rijo's sentencing hearing, the district court confirmed that both the government and Vasquez-Rijo agreed that the firearm was found in a black plastic trash bag underneath the secondary engine near the rear of the vessel. The district court asked the government where the firearm was in relation to the drugs, to which the government answered that the drugs, firearm, fuel drums, and spare engine were scattered and distributed throughout "a very small area of the boat," which was thirty-feet long with approximately twenty-feet of length constituting the vessel's interior.
As to his objections, Vasquez-Rijo argued that there was no evidence that he owned or brought the firearm on board the vessel nor evidence of who initially possessed the firearm who brought the firearm on board, or...
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